Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers and the legal process, and hopefully, prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and proposed changes in the law and how they affect you. [00:00:30] My name is Dirk Derrick. I'm the founder of the Derrick Law Firm and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Pearl Carey (00:43):
Hi everyone. Thank you so much for tuning into this episode of The Legal Truth Podcast. I'd like to thank my co-host, Dirk J. Derrick, for joining me today. And this episode will be about the truth about recovering medical expenses in a personal injury case. So our first question is what qualifies as a medical [00:01:00] expense in a South Carolina personal injury case?
Dirk Derrick (01:03):
Medical expense is anything that you spend to treat physical or mental problems that were approximately caused by an event. It can be ER bills, treatment, surgery, reconstruction, can be anything that's reasonable and necessary in the treatment of the damages that were caused to a body during an event.
Pearl Carey (01:30):
[00:01:30] Absolutely. And so what does reasonable and necessary mean under South Carolina law?
Dirk Derrick (01:35):
Reasonable and necessary, it's kind of common sense, meaning under the law, reasonable is it's got to be a reasonable cost incurred and it's a necessary medical treatment. If you have a fractured arm, you can't go get a facelift. That's not reasonable or necessary. It's got to be tied to the injury.
Pearl Carey (01:55):
Right.
Dirk Derrick (01:56):
And often, that is [00:02:00] contested by the insurance company because of prior medical conditions or pre-existing conditions. As you age, once you get over 35 or 40, you start getting degeneration in your body. And one of the biggest things we see insurance companies contest is whether or not a particular injury was caused by the incident or was it pre-existing? Was it a prior medical condition that maybe not have been symptomatic but you had [00:02:30] before? And that's where they attack whether or not it's reasonable and necessary. That's in a lot of our cases, a lot of our cases, and it's one of the reasons why insurance companies, if someone represents themselves, they will ask them to sign a medical authorization and that medical authorization and HIPAA form gives the insurance company the ability to go back and look at all your medical history. And most of the time it's not limited to a certain timeframe.
Dirk Derrick (02:59):
And what they're looking [00:03:00] for is whether or not you have anything in your medical history that they can blame these injuries on or reduce the value or say these are not totally related to this wreck and that's why our clients don't sign those and why I wouldn't recommend anyone sign those because it allows insurance company to go on efficient expedition to see if they can blame the injury on something else.
Pearl Carey (03:23):
Right. And so can you recover the full amount billed by the provider even if your health insurance paid less?
Dirk Derrick (03:30):
[00:03:30] Yes, we're a collateral source state. What that means is that you claim the full amount of the medical bills that are reasonable and necessary and cause are related to your injury and that's the damages for the medical bills. That is the law whether you've got health insurance or not. What happens in these situations is you claim the full value, you get paid, but then if you are Blue Cross and Blue Shield or Medicare [00:04:00] or Medicaid or any health provider has paid these bills, in South Carolina, they have a subrogation right if they exercise it where they can get some or all of their money back from those proceeds.
Dirk Derrick (04:13):
So you get all the medical expenses and then may have to pay back your medical insurance, whether it's private insurance or some kind of governmental entity. There's certain types of insurance that are controlled by ERISA federal [00:04:30] regulated insurance plans that you get through your employer and sometimes they write those plans so they want all their money back. When you're dealing with health insurance, they'll take a portion. When you're dealing with Medicare or Medicaid, they want a portion also. But by law, we have to deal with any subrogation or liens that we know of. If we put on notice of the lien, we have to negotiate those out at the end of the case.
Pearl Carey (04:58):
Got it. That makes sense. So [00:05:00] what about future medical expenses? Can you recover those?
Dirk Derrick (05:03):
Yes. What we do in all of our cases when the doctor treats someone and you get as good as you can get, the medical term is maximum medical improvement, MMI. And when someone gets to MMI, doctors are then asked, "What about the future? Do they have any impairment? Do they have any restrictions? Are they going to need any medical treatment in the future?" Most [00:05:30] of the time the doctors aren't going to tell you that until you hit that maximum medical improvement after they treat you and get you as well as they can get you. And at that point, we'll seek the doctor's opinions as to whether or not future medical care is necessary. That's a big part of bad injuries. You've got a TBI, paralysis, some life-changing injuries, a lot of those involve a amount of future medicals and [00:06:00] that's part of your damages and it needs to be calculated in order to determine what the fair value of your claim is.
Dirk Derrick (06:06):
Now what the law states is that you need a medical expert to testify that based upon a reasonable degree of medical certainty, it is more likely than not that you're going to need these medical treatments in the future. Then someone has to testify, an expert, as far as what's the cost of those future medicals. And then you have to get a economist to [00:06:30] come in and give you the present value of all those future medicals to give a jury to determine what amount of money you're asking for those future medicals. Future medicals are very important. If you don't work the case up right and you leave those off the table, you can get down the road 10 years or 15 years and realize now you need more surgery, more treatment, and you have not pursued that when you had a case.
Pearl Carey (06:55):
So with that being said, do you need expert testimony to prove medical expenses?
Dirk Derrick (07:00):
[00:07:00] Most of the time. If you get in a wreck and go straight to the ER and you're complaining of a neck injury because of a car accident, you can present that to the insurance companies and they see that it's all tied to that event. But when you start getting to additional medical care, you usually need a doctor to say that this is caused by the wreck, caused by the incident. What the law says is that when you have a claim, you have to prove that the outfall party had a duty, [00:07:30] they breached that duty and then that negligence or that breaching of the duty caused you damages. And if it's a medical condition, most of the time you want a medical doctor to say, "Based upon the reasonable degree of medical certainty, it is more likely right and wrong that the injury that I'm treating this person for or the symptoms I'm treating this person for, or the future medicals that I say this person is going to need, were causally related [00:08:00] by the incident that is the center of the case.
Pearl Carey (08:05):
Yeah, absolutely. That does make sense. Well, I know you've said previously, so maybe we need to reiterate this in this episode that the doctor that you see right after your accident is chosen by your insurance company, right? Or how is it determined? Can you go to any doctor? So like-
Dirk Derrick (08:22):
Yeah.
Pearl Carey (08:22):
Okay.
Dirk Derrick (08:22):
You can go to whoever you want to.
Pearl Carey (08:23):
Okay.
Dirk Derrick (08:24):
Some doctors will not see people who have injuries arising out of an incident or collision. [00:08:30] Some doctors don't want to get involved with the whole litigation process, but you need to get proper care. You need to do what the doctor tells you to do and then we can get the doctor's opinions as far as your condition. And most of these cases will look backwards at people's medical records and their health history to prove that this is not caused by a pre-existing condition or that they had this injury before. Proving the causation and proving that it was caused by this [00:09:00] incident is something that we attack in every case. The best evidence that it was caused by this incident is if you have imaging before the incident, imaging after the incident and there's been a physical change to your body and you can show a jury that it's pretty clear this caused it.
Dirk Derrick (09:23):
Now, not a whole lot of people walking around with MRIs taken two weeks before an incident that they don't expect to happen. [00:09:30] So that we don't have that always. We do have that in cases where people have a pre-existing condition, they had a surgery, all the symptoms went away, they had an MRI after the surgery, it was good, everything was lined up. Six months later, they get in another car wreck, we get a new image and now you can see a structural change to the surgical site or it's a different area of the spine or different [00:10:00] injury that you had within the imaging before. So that helps you to prove the case. Imaging is the best evidence of causation.
Dirk Derrick (10:09):
The second best evidence in my opinion, are the opinions from the experts supported by corroboration. And what I mean is I want an expert to give me their opinion as to whether or not this incident caused this injury. And then I want to ask them why or ask [00:10:30] her "Why do you say that?" A lot of them will say "It's because of the history that the injured person gave me," but I like more than that, I like this is the type of incident that causes this injury. Or he goes some medical literature that shows that this injury is caused by this type of incident. When it comes to future medicals, I like medical journals from respected medical journals that [00:11:00] talk about with this type of injury, he goes the most likely outcome. He goes a percentage of people who need a second surgery and so forth.
Dirk Derrick (11:09):
Anything you have like that to go with the doctor's opinion just corroborates it, just supports it. So imaging number one, expert opinion supported by journals and some corroboration. Sometimes we get a second opinion from a doctor where you have two doctors agreeing that's caused it. So whatever [00:11:30] you need to do to support it and corroborate it. And there's sometimes that is not corroborated. Sometimes the doctor say, "It's not caused. This is something they had before." I remember when we had a bad brain injury case and the doctor said "He's got a significant problem, but this was not caused by this incident." So that determines how much of that you can recover for and said better than that, getting those doctor's opinions and the corroboration is what determines whether or not you can prove the causation.
Pearl Carey (12:00):
[00:12:00] What might happen if you don't have corroboration from doctors or you don't have that imaging that we were discussing earlier?
Dirk Derrick (12:06):
Well, you usually need to at least have the opinion of the doctor even if they don't have any corroboration with imaging or medical journals or anything to back it up. A lot of times the doctors will rely on the history given to them by the patient. The patient says, "I wasn't hurting. I've never hurt. Had this incident, now I'm hurting." Unless the defense or the insurance company can show the doctor, "Hey, [00:12:30] they lied to you. Here goes where they were hurting six months ago." The doctor's going to believe their patient until they prove them different. If you have your client telling the doctor this is a new injury, he's relying on it. It's very good to do your own investigation and corroborate what your client is saying. And that may be and usually is, let's get all the prior medical records and show that she's never complained of this entry.
Dirk Derrick (12:59):
Let's talk [00:13:00] to her co-employees, people who aren't kin to her. Let's talk to her supervisor who's watched her work for 10 years and when you add... Now, it's not the client saying she's never had these problems, now it's all these people saying she's never had these problems. So it's just building proof. It's just build a corroboration and that could be done.
Dirk Derrick (13:20):
And then like I said, the fourth level, I always think of family members as a fourth level and unfortunately, but most [00:13:30] of the time, if you have a problem and you hadn't had a problem and then you started having a problem, unless you're just somebody who shares your problems with everybody, most of the time it's your family members who hear it, people who are around. Any kind of aching I have in my body, I don't go out and tell a bunch of people [inaudible 00:13:49]
Pearl Carey (13:49):
Of course not. Yeah.
Dirk Derrick (13:50):
My wife would know it. But then if my wife says, "Yeah, Dirk complains about his knee," her credibility is really an issue if I'm asking somebody [00:14:00] to pay for an injury and I'm basing on my wife said "Wasn't hurt before and now it's hurting." So it's just a matter of how strong the evidence is to prove your medical expenses, what you need in the future. We focus group these cases and that's kind of the order that the focus group has told us when it comes to proven up causation of medical conditions and the need for medical treatment.
Pearl Carey (14:29):
That makes sense. [00:14:30] So I know that earlier you brought up this idea of mental health and how that plays into your future medical expenses, et cetera. Tell me a little bit more about that role that could play.
Dirk Derrick (14:39):
Yeah, the mental health problem, PTSD, anxiety caused by incidents, it is recoverable in South Carolina. I will tell you that 20 or 25 years ago, I would not even have alleged mental damages in a lot of cases unless it was very, very bad. [00:15:00] But in the last 15 or 20 years, the public has really become aware of the mental health part of people's general wellbeing. The soldiers came home and some other things. That's a lot of people very knowledgeable now of mental health problems. It's kind of shocked me how many people in the focus groups that we do bring up the mental health part of the injury and even ask about mental health problems [00:15:30] when it has not been presented to them.
Dirk Derrick (15:32):
On a mental health claim, you need to prove that it was caused or aggravated by the incident in question. Somebody can have an underlying condition and doing well and then an event happens and it can be aggravated or exacerbated and you have to determine whether or not that exacerbation is a temporary exacerbation or whether it's a permanent exacerbation which will need medical testimony. [00:16:00] That kind of question usually comes to the doctor or professionals who are treating them before and after to get a before and after assessment. If they've never had any kind of mental health problems, and then it happens again, you need a medical provider to say, to make the diagnosis and the prognosis and tell what kind of treatment they need now and into the future. It's kind of like physical injuries. Is that required expert testimony?
Dirk Derrick (16:29):
Mental health [00:16:30] is very often something you can't see. There's some tests that can be done if it's for some types of mental health injuries, but a lot of it comes down to the credibility of the person and the professional who's testifying. But on a good note, the public really respects it now, understands that people do sustain mental health injuries and we take it serious. They usually want somebody getting diagnosed early and getting treatment [00:17:00] and doing everything they can to get over it in order for them to want to pay for that treatment.
Pearl Carey (17:06):
Yeah, absolutely. And so could family members testify as well similar to how they could for a physical injury?
Dirk Derrick (17:11):
Yeah. And again, it's the same kind of structure or you want first and then you can put an expert, you can put medical journals, you can put co-employees and you can put family, and you wouldn't exclude any of them. It's just how you want to stack them together to add the most [00:17:30] corroboration that the injury occurred.
Pearl Carey (17:33):
That makes sense.
Dirk Derrick (17:34):
Focus group members have said often that they do want somebody trying to get better. So if you have a mental health injury and you don't get treatment, you don't get diagnosed and you just come in and say-
Pearl Carey (17:46):
I'm distressed.
Dirk Derrick (17:48):
"I have all anxiety now because of it," but you haven't got treatment, then that's not enough for them to award damages for that.
Pearl Carey (17:55):
That makes sense. So Dirk, is there anything else that you'd like to add?
Dirk Derrick (17:59):
I [00:18:00] think the only thing I would add to the public is a warning of something that we've seen more of lately. When cases happen, there's some insurance companies now that are throwing out quick offers to people before they get represented and they'll say, "Hey, we'll pay you $2,000 and reasonable medical care if it happens in the next six months, up to $8,000, up to $10,000." That is dangerous because like I said, until [00:18:30] someone gets treatment and gets to maximum medical improvement, the doctors will not say if this person's got a permanent injury and it's going to have to be dealing with this thing for 20 years. The insurance company is trying to nip it in the bud and close it out.
Pearl Carey (18:44):
Right.
Dirk Derrick (18:45):
And they also are putting the language in there if it's reasonable and necessary care. So now they're making a determination out of that money. They say they'll pay medical bills what's reasonable and necessary. Third thing is they often say, "Give [00:19:00] us your medical bills," and then they go to the provider and they can negotiate those bills and pay them less.
Pearl Carey (19:07):
Wow.
Dirk Derrick (19:07):
Whereas if you went to the provider, you could save that money for yourself. So they're cutting off your future damages and then they are putting limits on the medical care they're going to give you and then they're getting some of the reimbursement or saving some of those medical providers and they're keeping it themselves.
Pearl Carey (19:28):
Wow.
Dirk Derrick (19:28):
It's a real good deal for them. [00:19:30] It's a real bad deal for somebody who doesn't know what they're doing. When they make that offer, it may sound good, but it can put you in a bad situation.
Pearl Carey (19:39):
Yeah, definitely. That sounds like it could be rough in the long run for a lot of people that sustain permanent damages.
Dirk Derrick (19:43):
Yep.
Pearl Carey (19:44):
So Dirk, give me a few of the bullet points that we learned today to conclude.
Dirk Derrick (19:48):
The overall theme is you can recover medical expenses relating to an incident, a personal injury claim, and that can be physical and it can be mental [00:20:00] and they can be the full amount. Even if you have health insurance, Medicare, Medicaid, you're entitled to the full amount of the bill in South Carolina. And most of the time you will need your treating physician or an expert to give opinions that the medical treatment they are rendering was caused by the incident in question. And a lot of times, because we wear and tear in life, we will need [00:20:30] or you will need to go back into your prior medical history and prove this is something that you did not have and prove that with either your prior medical history or with lay witnesses, people you work with, people who know that you didn't have this condition before this incident.
Pearl Carey (20:48):
Absolutely. Well, thank you so much, Dirk, for joining me today on this episode of The Legal Truth. And if you're looking for more information, please visit our website at derricklawfirm.com/thelegaltruthpodcast. Thank you so much [00:21:00] and we'll see you next time.
Dirk Derrick (21:01):
Thank you.
Voiceover (21:09):
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to thelegaltruth@derricklawfirm.com. If you would like to speak to us directly, call us at (843) 248-7486. If you find the podcast valuable, please leave us a five star review and share the legal truth [00:21:30] with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast. Located at 901 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law [00:22:00] Firm Injury Lawyers and the user.
Voiceover (22:01):
While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed [00:22:30] to be correct, complete, or up to date as laws continue to change. In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.